On September 5, 2018, in a highly anticipated decision on the scope of legal privilege under English law, the English Court of Appeal handed down its decision in SFO v ENRC, rejecting the restrictive approach that had been taken by the High Court to litigation privilege.
The decision has important implications both as to when litigation may be said to be in reasonable contemplation and as to what documents can be said to be for the dominant purpose of litigation. Most significantly, the Court of Appeal confirmed that documents created for the purposes of avoiding contemplated litigation were covered by litigation privilege. In relation to legal advice privilege, the Court of Appeal saw “much force” in criticisms of the narrow approach that had been taken in the Three Rivers No 5 line of authorities, although ultimately held that it was an issue that could only be resolved by the U.K. Supreme Court.
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